THE BERLIN TRIBUNAL: MORE SERIOUS THAN THE HAGUE
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
By Diana Johnstone

Last June 3, two tribunals reached opposite conclusions concerning
accusations of war crimes brought against NATO for its 1999 bombing
campaign against Yugoslavia. In The Hague, Carla Del Ponte, chief
prosecutor at the "International Criminal Tribunal for former
Yugoslavia"
(ICTY), created by the UN Security Council at the initiative of the United
States, announced that she saw no grounds even to open an inquiry. NATO
made "some mistakes", she acknowledged. But Ms Del Ponte was
"very
satisfied" that there had been no deliberate targeting of civilians during
NATO's bombing campaign.

No wonder. Indicting NATO would have meant biting the hand that feeds this
Tribunal, whose former presiding judge Gabrielle Kirk McDonald once
described Madeleine Albright as its "mother". It was hardly
conceivable
that the ICTY would allow itself to get too interested in crimes committed
by the NATO powers who provide it with funding, equipment and
investigators... not to mention its basic political agenda, which is to
justify the diplomatic isolation of Serbian leaders by labeling them as
"indicted war criminals".

In Berlin, on the same day, another Tribunal concluded a far more serious
examination of the charges against NATO. This unofficial "European
Tribunal" was genuinely independent of all the governments involved in the
1999 war. In contrast to The Hague, the conclusions were based on several
public hearings (already published in two illustrated volumes ), precise
references to international law, detailed presentation and analysis of the
relevant facts and finally the direct testimony of six victims who came
from Yugoslavia to recount their experience as civilian targets under the
78-day rain of NATO bombs and missiles.

The Berlin Tribunal was presided by a distinguished Hamburg University
professor of international law, Dr. Norman Paech, who insisted that the
verdict would be based on strictly legal criteria. And indeed the
deliberations of this European Tribunal in Berlin, supported by over sixty
peace, civic and human rights groups, stuck very strictly to the subject
of the NATO war against Yugoslavia, to the exclusion of other political
issues (in contrast to the similar Tribunal organized by the International
Action Center in New York on June 10, which chose to link issues).
Berlin's proximity to Eastern Europe was reflected in the composition of
the panel of jurists, who had come from Austria, Italy, Hungary, Poland,
Belarus, the Czech Republic, Russia and Macedonia.

The long and detailed indictment, presented by lawyer Ulrich Dost, was
divided into two main sections: first, responsibility for deliberately
preparing the war against Yugoslavia to the exclusion of peaceful
negotiated solutions to the Kosovo problem, and second, violations of
international law in the conduct of the war. The former East German
ambassador to Belgrade, Ralph Hartmann, a genuine expert on the region,
presented a recapitulation of key events and statements that clearly
demonstrated the major responsibility of the Federal Republic of Germany
in preparing the war, both by actively encouraging armed ethnic Albanian
separatists and by pushing other NATO allies toward military intervention.

Retired Bundeswehr General Heinz Loquai, who served as German military
observer at the Organization of Security and Cooperation in Europe (OSCE)
headquarters in Vienna, contributed a damning report on how the German
Defense Ministry itself invented "Operation Horseshoe", the supposed
Serbian plan to expel the Albanian population from Kosovo, which was
"revealed" by Defense Minister Scharping in April 1999 to justify the
bombing as it began to lose public support. Hartmann and Loquai are among
the authors of a growing number of German books which are devastating in
their refutation of NATO claims. Indeed, if certain German media and the
German government bear major international responsibility for initiating
the violent disintegration of Yugoslavia in 1991, by the same token German
critics of the process are perhaps the best informed and most thorough in
their denunciations. Nobody understands the German right better than the
German left.

Such a "people's tribunal", like the Russell Tribunal formed to
condemn
the U.S. war in Vietnam, obviously has no power to carry out a sentence.
Its verdict is purely moral, and serves to point up two things: the
existence of flagrant violations of the law, and the absence of any
existing institutional recourse. It does not settle but rather raises a
number of questions.

The verdict, as expected, found the top officials of NATO and its member
states guilty of having committed an aggression in violation of all the
relevant treaties and international agreements, from the United Nations
Charter to the NATO Treaty itself, as well as numerous conventions. Far
from being legitimately "humanitarian", NATO's intervention ignored
and
blocked Belgrade's various compromise offers and dramatically worsened an
already difficult situation, causing a sharp increase in the number of
victims.

Such a verdict is similar to the finding of a "truth commission", and
shows at least that a prima facie case exists against NATO. A careful
examination of the Berlin results, as well as those of other "people's
tribunals", is enough to expose the uselessness of Ms Del Ponte's ICTY
when it comes to establishing the facts, let alone justice.

The Berlin Tribunal pinpointed an important treaty violation scarcely
mentioned in other NATO countries: by sending its warplanes to bomb
Yugoslavia, the Federal Republic of German was in flagrant violation of
the so-called "4 plus 2" treaty of 1990 by which Moscow consented to
the
unification of the two German states. By that Treaty, the German
government undertook a solemn commitment that "never again would war
emanate from German territory" and that Germany's military engagements
would remain strictly within the norms of the United Nations Charter.

The Berlin Tribunal condemned not only Chancellor Gerhard Schroeder,
defense minister Rudolf Scharping and foreign minister Joschka Fischer,
but also all the members of the Bundestag who had voted in favor of a
military engagement that clearly violated the Federal Republic's
international engagements.

The Tribunal expressed concern at the role played by the war against
Yugoslavia in the formulation of NATO's new "strategic concept", whose
significance "extends far beyond the Balkans and across Eurasia as a model
for a future world military order". To prevent such military
globalization, the Tribunal said it was imperative to pursue examination
of the preconditions, objectives and consequences of the war against
Yugoslavia and to draw attention to its eventual geostrategic
implications.

On the matter of civilian targets, the Berlin Tribunal cited statements
from various NATO officials and military officers proving that the choice
of civilian targets was indeed part of the "third stage" of a strategy
aimed at putting pressure on the civilian population to rise up against
its own government, a clear violation of the Geneva Conventions. Moreover,
the use of such weapons as depleted uranium and cluster bombs clearly
endangered the civilian population, both during and after the actual
bombing, and constituted a particularly grave violation of international
humanitarian law.

About 600 people attended the two-day proceedings in the handsome
Protestant Church of the Holy Cross in the Kreuzberg section of Berlin,
whose pastor Jürgen Quandt in his welcoming speech rejected the concept of
"just" war.

The Berlin Tribunal condemned the deliberate destruction of the Belgrade
studios of Radio Television Serbia (RTS) not only as an attack against a
civilian installation, but also as an assault on freedom of information.
The purpose was to deprive not only the Yugoslavs but also audiences
around the world of the pictures and information concerning the bombing
broadcast by RTS. Whether or not that information was "objective" was
irrelevant, the verdict stated, since the same could be said of
information broadcast by NATO media.

This condemnation of the bombing of RTS was echoed a few days later by
Amnesty International which, accusing NATO of war crimes, specifically
cited the deliberate bombing of the Belgrade television studies, which
killed 16 employees -- a flagrant crime which failed to interest Ms Del
Ponte.

In conclusion, the Tribunal presided by Dr. Paech emphasized the need to
pursue the search for truth. The underlying problems in the Balkans remain
serious and unresolved. "It is imperative for the public to be informed
not only of the physical and material damage, but also of the
psychological wounds inflicted ... This war must not be the model for a
new world order. We must finally make it clear to politicians and the
military that neither human rights nor civilization are to be saved by
war, that war must no longer be used as a political instrument."